Special Leave to Petition
Introduction
It is “residual power” in the hands of the apex court which is to be exercised only in cases where any substantial question of law is involved or gross injustice has been done. The Power of the Supreme Court under article 136 is discretionary. Article 136 empowers the apex court to grant special permission or ‘leave’ to an aggrieved party to go for an appeal against an order passed by any lower courts or tribunals. It itself is not an appeal but a petition( permission) to file for an appeal.
Table of Contents
- Introduction
- Origin of SLP
- When SLP Can Be Filed
- Rules of SLP
- Pritam Singh v. The State [AIR 1950 SC 169]
- Kunhayammed v State of Kerala, AIR 2000 SC 2587
- Mathai @ Joby v. George ( (2010) 4SCC 358 )
- Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, 1955 AIR 65
- Sir Chunilal V. Mehta and Sons Ltd. V. Century Spinning and Manufacturing Co.,1962 AIR 1314
- Conclusion
Supreme Court discretion is there to grant the petition to be heard if it deems fit to be heard. If the permission is granted then the S. L. P. is transformed into an appeal. Article 136 provides an exception that the Special Leave Petition shall not apply against the judgment or decree or order with regard to arms forces. It’s the sole exception in Special Leave Petition stated in Article 136 (2). discretionary power of the apex court to grant “special leave to appeal” from “any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
Origin of SLP
An expression ‘special leave to appeal’ under article 136 of the Constitution was adopted from the Government of India Act, 1935 and was found in five provisions in the act. It was first found under section 110(b) (iii), then under section 205(1), section 205(2), section 206(1) (b) and section 208 of the act.
Prior to the enactment of the Constitution, the Privy Council had the power to grant special leave from any civil or criminal matter decided by any court in India. The First Draft Constitution by the Constitutional Advisor included a section 94 similar to Section 206 of the 1935 Act. Section 94, which was included in the First Draft, dealt with the appellate jurisdiction of the Supreme Court to hear appeals from High Court without a certificate. Subsequently, the Drafting Committee introduced draft article 112 which provides that in cases where the provisions of Article 110 or Article 111 does not apply, the Supreme Court could in its discretion grant “special leave to appeal” from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in India except States specified in Part II of the First Schedule. This article was widely debated on the ground of the absence of natural justice. The said draft article was amended by the Assembly by deleting the words “except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply” which gave rise to the enactment of Article 136 of the Constitution.
When SLP Can Be Filed
The appeal can be filed where a substantial question of law is involved or where gross injustice has been done. SLP can be filed against any judgment of High Court within 90 days from the date of the judgment. However, it is the discretion of the Apex court to give relaxation of time limit. Or it can be filed within 60 days against the order of the HC refusing to grant the certificate of fitness for appeal to SC.
Rules of SLP
- Special leave can be granted in cases of civil, criminal, Income tax related cases, cases from various tribunals etc.
- SLP can also be filed when a High Court does not approve fitness for appeal to Supreme Court.
- A private party other than the complainant is not permitted to appeal.
JUDICIAL PRONOUNCEMENTS
Pritam Singh v. The State [AIR 1950 SC 169]
The Court observed that a uniform standard should be adopted while Granting the permission for Special Leave. The court further observed that the Court should not grant special leave unless it is shown that “exceptional and special circumstance exist”, and “substantial and grave Injustice” has been done.
In the case of Kunhayammed v State of Kerala, AIR 2000 SC 2587, the dispute was regarding the jurisdiction under Art. 136 and whether it is appropriate for granting SLP and eventually hearing the case. Supreme Court observed that Article 136 consists of two stages.
- it is granting special leave to appeal
- It is hearing the appeal.
The Court observed that while hearing the petition for special leave to appeal, this court is called to see Whether the petitioner should be granted such leave or not. The Court observed that while hearing such a petition, this Court is not exercising its appellate jurisdiction and is merely exercising its discretionary power to grant or not grant leave to appeal. If leave to appeal is granted, “the appellate jurisdiction of the Court stands invoked, the gate for entry in the appellate arena is opened”. However, mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226.
Mathai @ Joby v. George ( (2010) 4SCC 358 )
Apex court in Mathai George refused to restrict the scope of Article 136 and stated that no effort should be made to restrict the powers under Article 136 of the Apex court. The Court said that it would be better to exercise the said power with circumspection, rather than to limit the power forever.
Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, 1955 AIR 65
The Supreme Court held that “It is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It is an exceptional and overriding power and it has to be exercised sparingly and with caution and in special and extraordinary situations.
Sir Chunilal V. Mehta and Sons Ltd. V. Century Spinning and Manufacturing Co.,1962 AIR 1314
Court held that “the proper test for determining whether a question of law raised in the case is substantial or not depends on whether it is of general public importance or whether it is directly and, substantially affects the rights of the parties and if so whether it has not been finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.”
CONCLUSION
Special leave petition holds a prime place in the Indian judicial system and has been provided as a huge contrivance of the dispensation of justice from the Supreme Court in the country. A power under article 136 of the Constitution can be exercised only in cases when any substantial question of law is involved or gross injustice has been done.
Article 136 of the Constitution confers discretionary power on the Supreme Court and it may in its discretion refuse to grant leave to appeal. The aggrieved party cannot claim special leave to appeal under Article 136 as a right but it is a privilege vested in the Supreme Court of India to grant leave to appeal or not. However, one important drawback of this discretionary power is that it leaves the question of law open for a future after refusing special leave to petition Therefore, a strict approach is required in our judicial system while refusing special leave to appeal and at the same time do not let the question of law remain open for a future date.